Do I Need to Store Tenant's Abandoned Property in Georgia?
Full Question:
Answer:
Georgia law provides that a landlord is not responsible for personal property of a tenant left behind after a writ of possession (eviction) is served. Abandoned property is primarily governed by local ordinances, so we suggest calling the local police department to inquire about applicable procedures for abandoned property. Typically, such laws require notice to be sent to the the last known address, giving a certain length of notice for the property to be retreived or otherwise deemed abandoned and subject to sale.
The answer may depend on whether you are considered a sublessor. A subtenant is usually someone who is renting part of your place from you and paying rent to you instead of your landlord. In this relationship, you are the "landlord" and your roommate is your "tenant." If only one roommate is listed on the lease and the others have not signed the lease, only the roommate listed is considered the tenant. The others are considered subtenants. Only roommates who sign the lease are responsible for the full amount of the rent to the landlord. The roommates who signed may have some separate claims against their non-signing, non-paying roommates, but such claims would typically be covered by contract law rather than landlord tenant law.
Until the time to reclaim the property stated in the notice expires a gratuitous bailee must use at least minimal care to store the items. When a person who is not a landlord agrees to hold property for another, a bailment is created. There are different types of bailments- "bailments for hire" in which the custodian (bailee) is paid, "constructive bailment" when the circumstances create an obligation upon the custodian to protect the goods, and "gratuitous bailment" in which there is no payment, but the bailee is still responsible. There is a lower standard of care imposed upon the bailee in a gratuitous bailment, and the parties may contract to hold the bailee free from liability in any bailment. As the law of bailments establishes a lower standard of care for the bailee in a gratuitous bailment agreement, such an agreement or receipt should indicate explicitly that the bailee is acting without compensation. When a bailment is for the exclusive benefit of the bailee, the bailee owes a duty of extraordinary care. If the bailment is for the mutual benefit of the bailee and bailor, the bailee owes a duty of ordinary care. A gratuitous bailee must use only slight care and is liable only for gross negligence. To create a bailment, the alleged bailee must have actual physical control with the intent to possess. Physical control and intent to possess will be interpreted according to the expectations of the parties. If a court thinks that liability would be unexpected or unfair, it can usually find that the defendant did not have “physical control” or “intent to possess.” For example, courts are more likely to find a bailment of a car exists in a garage with an attendant than in a park and lock garage.
Please see the following GA statutes:
44-7-71. When rent is due or the tenant is seeking to remove his property,
the. . . .
When rent is due or the tenant is seeking to remove his property, the
landlord, his agent, his attorney in fact, or his attorney at law
may, upon a statement of the facts under oath, apply for a distress
warrant before the judge of the superior court, the state court, the
civil court, or the magistrate court within the county where the
tenant may reside or where his property may be found.
44-7-72. When the affidavit provided for in Code Section 44-7-71 is made,
the. . . .
When the affidavit provided for in Code Section 44-7-71 is made, the
judge of the superior court, the state court, the civil court, or the
magistrate court before whom it was made shall grant and issue a
summons to the marshal or the sheriff or his deputy of the county
where the tenant resides or where his property may be found. A copy
of the summons and the affidavit shall be personally served upon the
defendant. If an officer is unable to serve the defendant personally,
service may be given by delivering the summons and affidavit to any
person who is sui juris residing on the premises. The summons served
on the defendant pursuant to this Code section shall command and
require the tenant to appear at a hearing on a day certain not less
than five nor more than seven days from the date of actual service.
44-7-80. The landlord's lien for his rent shall attach from the time that
the. . . .
The landlord's lien for his rent shall attach from the time that the
affidavit is made pursuant to Code Section 44-7-71; but it shall take
precedence over no lien of older date except as to the crop raised on
the premises
44-7-1. (a) The relationship of landlord and tenant is created when the
owner. . . .
(a) The relationship of landlord and tenant is created when the owner
of real estate grants to another person, who accepts such grant, the
right simply to possess and enjoy the use of such real estate either
for a fixed time or at the will of the grantor. In such a case, no
estate passes out of the landlord and the tenant has only a usufruct
which may not be conveyed except by the landlord's consent and which
is not subject to levy and sale.
(b) All renting or leasing of real estate for a period of time less
than five years shall be held to convey only the right to possess and
enjoy such real estate, to pass no estate out of the landlord, and to
give only the usufruct unless the contrary is agreed upon by the
parties to the contract and is so stated in the contract.
44-7-55. (a) If, on the trial of the case, the judgment is against the
tenant,. . . .
(a) If, on the trial of the case, the judgment is against the tenant,
judgment shall be entered against the tenant for all rents due and for
any other claim relating to the dispute. The court shall issue a writ of
possession, both of execution for the judgment amount and a writ to be
effective at the expiration of seven days after the date such judgment
was entered, except as otherwise provided in Code Section 44-7-56.
(b) If the judgment is for the tenant, he shall be entitled to remain in
the premises and the landlord shall be liable for all foreseeable
damages shown to have been caused by his wrongful conduct. Any funds
remaining in the registry of the court shall be distributed to the
parties in accordance with the judgment of the court.
(c) Any writ of possession issued pursuant to this article shall
authorize the removal of the tenant or his or her personal property or
both from the premises and permit the placement of such personal
property on some portion of the landlord's property or on other property
as may be designated by the landlord and as may be approved by the
executing officer; provided, however, that the landlord shall not be a
bailee of such personal property and shall owe no duty to the tenant
regarding such personal property. After execution of the writ, such
property shall be regarded as abandoned.